Medical marijuana ordinance may bring city legal challenges

Until Monday, Brant Johnson had supported a version of Lansing’s medical marijuana regulations that would have allowed existing dispensaries to keep their storefronts.

His support has since wavered. By adopting a policy that instead would force some businesses to move in a year, Johnson, an advocate for dispensary owners, said City Council members have invited a host of unwanted legal issues from owners operating under multiyear leases.

“There will be arguments on both sides but there are for sure going to be some lawsuits,” said Johnson, secretary of the Greater Lansing Medical Marijuana Association. “Let’s be real: A grandfather with a year move is not a grandfather.”

The potential for litigation has been an underlying facet of council’s efforts to write an ordinance that addresses Michigan’s voter-approved 2008 medical marijuana law.

City Attorney Brig Smith advised a council committee multiple times in recent months. He continues to assert the ordinance’s validity in the wake of council’s adoption.

But, Smith said, that doesn’t mean people won’t challenge it.

“If there were any dealbreakers in there, I wouldn’t have approved it,” Smith said. “The city is on solid ground and I’m prepared to defend it.”

A moratorium on business licenses ends Friday. None will be granted until City Council members approve fees and decide how many dispensaries can operate within city limits.

When they do, those businesses will have to stay 1,000 feet from schools, churches and other dispensaries. They also will have to stay within industrial and commercial zones.

2 main questions

Many dispensary owners still have two main questions: How will it be determined which business owners have to move and what happens if the 48 dispensaries in operation before the moratorium took effect exceed the city’s forthcoming cap?

The problem stems, in part, from dispensaries operating in a sort of political limbo since 2008, said at-large Councilman Brian Jeffries. He joined council President A’Lynne Robinson and at-large Councilwoman Carol Wood in opposing the ordinance.

“There is absolutely no guarantee” of future property rights, he said. “Whether people ignored that or chose to run the risk that ‘I’m still going to sign a long-term lease,’ then that’s a decision that they have to make.”

Another issue concerning dispensary owners is whether they will be compensated for having to move.

Neil Rockind, a Southfield attorney representing medical marijuana patients in Bloomfield Township and Royal Oak lawsuits, argues that forced relocation without compensation violates eminent domain and a property clause in the Fifth Amendment.

“They can’t take your property without compensation, and they can’t pass ordinances or laws that, in effect, take your property,” said Rockind, who is fighting registration requirements and grow restrictions in Oakland County.

Often, he said, places that operated before ordinances were passed are grandfathered in as nonconforming uses, allowed to exist until the business ceases to operate.

Rockind believes dispensary owners could have grounds to sue, but would have to consider the possibility that doing so might invalidate the very policy that allows them to exist.

The American Civil Liberties Union’s Lansing branch has not taken an official position. But attorney and board member Mary Chartier said the organization recognizes dispensaries’ concerns.

“It really takes a legitimate business and tries to hide it in a corner,” Chartier said. “These are businesses that are actually bringing revenue to the city.”

A constitutional challenge will depend on whether the city issued operating permits and whether policy changes appear in a city’s zoning ordinance, said Gerald Fisher, a Cooley Law School professor in Auburn Hills.

Fisher studied the law’s effect on local governments for the Michigan Municipal League and the Michigan Townships Association.

Secondary problems

Separately, Fisher said, distance buffers such as Lansing’s 1,000 feet can be justified if evidence proves clustering leads to secondary problems such as burglaries, illegal drug use and fights.

That was a main argument from eastside neighborhood associations and business owners leading up to council’s vote.

One of Danny Trevino’s HydroWorld dispensaries is located next to a church and he has thought about reopening an Old Town site shut down this year for electrical code violations. But first he wants to know how the policy will affect him.

“I knew that there had to be some type of regulations on it,” Trevino said. “There’s still a lot of questions.”

Additional Facts
What’s next
Lansing City Council’s public safety committee will meet at 4 p.m. today on the 10th floor of City Hall, 124 W. Michigan Ave., to discuss license fees and a cap on the number of medical marijuana dispensaries to allow within city limits.

Council’s next meeting will be at 1:30 p.m. July 7 at City Hall.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s